THE QNEEN v. CHOY HO LING

IN THE COURT OF APPEAL

_____________

J U D G M E N T

______________

Fuad, V.-P.:

1. Choy Ho Ling, who is a young woman aged 21, was convicted on 20 June 1988 by Judge Sanders, in the District Court of possessing dangerous drugs for the purposes of unlawful trafficking. She had pleaded not guilty. On 11 July she was sentenced to three years' imprisonment. She seeks leave to appeal against conviction and sentence.

2. The evidence led by the prosecution was, that in the early evening of 15 March a group of police, officers were on surveillance duty, hiding on the 4th floor of a block of flats in Kowloon. They saw the Applicant come out of her flat on that floor, with a black plastic bag under her arm. In the bag was found the following:

(a)    35 small polythene bags, each containing about 5 grammes of substance which looked like drugs;

(b) a paper bag with 5 polythene bags each, containing 10 grammes of a drug like substance;

(c)     a set of scales,

(d) two bundles of empty polythene bags;

(e) a box of candles;

(f)     another polythene bag with about 3 grammes of what looked like drugs in it.

3. When asked to account for these items the Applicant said nothing. She was thereupon arrested.

4. The Government Chemist's report showed that the total amount of drugs involved was 205.47 grammes of a mixture containing 12.23 grammes of salts of esters of morphine.

5. The Applicant elected, not to give evidence herself but called a young man as a witness. He told the Court that he had visited the flat where the Applicant lived with her husband to have a talk with him. The husband was not at home. The plastic bag containing the drugs and the other items the Applicant had been carrying, was his. He left the bag there, unbeknown to the Applicant, whilst he was going to make another delivery of drugs, On his way to make the delivery he had been arrested by the police. But before his arrest he had telephoned the Applicant and asked her to bring the plastic bag he had left in her flat down to him on the ground floor.

6. The judge did not believe the Applicant's witness. Applying the relevant presumptions which in his view had not been rebutted, he found the charge proved.

7. In her grounds of appeal the Applicant says that her witness had left the packet in her flat and she did not know what it contained. In her submissions to us today she repeated this account of how she came to be in possession of the drugs.

8. The conviction cannot be assailed. There is no merit in her application for leave to appeal against conviction and it is refused.

9. In his Reasons for Sentence, the judge noted that the Applicant had a clear record. She has a young daughter and was, at the time of the offence, about four months, regnant, She is an affectionate mother. The judge said that in view of these factors, he had found great difficulty in deciding what sentence to impose. He noted that the usual tariff sentence would be between 5 and 8 years' imprisonment for the quantity of drugs in her possession and he concluded his Reasons as follows:

"It is well known by Judges and Magistrates that drug traffickers often recruit couriers from the young, the elderly and women whose circumstances are as respectable as those of the Defendant, assuring them no doubt that if they were ever arrested for possession of drugs for trafficking, they would only receive light sentences. After considerable thought and with reluctance, I decided I should impose a sentence of imprisonment and that the appropriate sentence should be 3 years' imprisonment. Perhaps the authorities can arrange for the Defendant to have her baby born outside prison,"

10. We have been told that the Applicant is due to have her baby in January. Nobody who saw and heard the Applicant in Court today could fail to have considerable sympathy for her. However, this was, and it was intended to be, a merciful sentence and not one with which this Court could possibly interfere;

11. The application for leave to appeal against sentence is also dismissed.